August 2010 Archives

A non-profit organization based outside Philadelphia is suing the Internal Revenue Service alleging that its application for 501(c)(3) tax-exempt status is being delayed and may be denied due to an alleged special policy regarding organizations that have stances regarding Israel that are contrary to Obama Administration policy. Click here to read the federal court complaint. The plaintiff is an organization called Z Street. The basis of the action is summarized in the complaint in the case of Z Street v. Shuman, Commissioner of Internal Revenue:

In situations where parents are separated or divorced and custody is shared in some way, there are a variety of arrangements. Perhaps most commonly, one parent has the child most of the time and other has the child on a particularly schedule - commonly certain weekend, perhaps dinner during the week and various holidays and vacations. When parents live in the same region, it is possible for the parent without primary custody to have frequent time with the child. What happens, however, when the parent with primary physical custody wants to move far away? Generally, it is required to obtain court approval to relocate children, particularly if it will be out of the state in which they are currently living. The best procedure is for the relocating parent to petition for approval before making the move. To simply get up and move may violate an existing court order. If there is no existing court order, when the other parent brings the matter to court, the judge will likely not look favorably on a move having been made without prior agreement or court approval. Courts generally consider it in the best interest of children, when possible, to have meaningful relationships with both parents. If the parent with primary physical custody moves away, that will probably negatively impact the relationship with the other parent. If the court is going to approve such a move, there will have to be a showing that this move is in the child's best interest. There can be a number of reasons to justify the move such as obtaining a job that can provide a better standard of living, proximity to other family that can provide a support system to the custodial parent and more. If a long-distance move will be approved, it is common for the court to require adjustments to provide as much time as reasonably possible with the other parent such as extended time during school vacations and on holidays. The spread of 21st century communications technologies are opening up new possibilities. In the New York state case of Baker v. Baker, a Suffolk County, NY judge ordered that a mother moving with the parties' children, ages 9 and 6, to Florida must, before moving, arrange at her own expense that the father will be able to have real-time video communication with the children via Skype. The mother wanted to move to Florida so she and the children could live with her parents and hopefully there would be better job prospects. The judge ordered that the father be able to video chat with the children at least 3 times per week and at least 1 hour per connection. The mother in the Baker case was laid off from her bookkeeping job and remains unemployed. The father is a recovering alcoholic and only has very low income. The judge, Suffolk County, NY Supreme Court Justice Jerry Garguilo wrote:

The Prop 8 proponents, after losing at trial, may not even be allowed to pursue an appeal on the merits. The latest big story in the California Proposition 8 constitutionality case, Perry v. Schwarzenegger, is that the U.S. Court of Appeals for the 9th Circuit issued an order which granted a stay on implementing District Judge Vaughn Walker's order that would allow same-sex couples to marry in California beginning tomorrow (August 18). The stay keeps same-sex couples waiting while the appeal process unfolds. The 9th Circuit Court also ordered an expedited schedule for the parties to file briefs.The final sentence of the 9th Circuit Court's order could have large implications for the case. It reads

Put simply, the Court of Appeals is asking the organizations filing the appeal to justify why they should be able to appeal at all. Recall that when the plaintiffs filed their suit to challenge Proposition 8, they filed suit against Governor Arnold Schwarzenegger, Attorney General Jerry Brown and other California state officers acting in their official capacities - as was the correct procedure. However, the state officials, being of the view that Proposition 8 was unconstitutional, chose to not defend against the lawsuit. Federal District Judge Vaughn Walker allowed several non-governmental parties to participate in the case as Defendant-Intervenors and it was only they who presented any defense of Proposition 8. After Judge Walker issued his ruling that Proposition 8 violated the Due Process and Equal Protection provisions of the 14th Amendment of the United States Constitution, it was the Defendant-Intervenors who filed an appeal. If you examine the text of the 9th Circuit Court's order, while it lists Governor Schwarzenegger and the other officials as Defendants, they are not listed as Appellants because they did not appeal Judge Walker's ruling. Only the private Prop 8 proponents filed an appeal.So before this appeal can even proceed on the constitutional merits, the 9th Circuit Court must decide whether the Prop 8 proponents are even parties who can appeal Judge Walker's ruling. The basis for raising this question comes from a prior U.S. Supreme Court decision, Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). In that case, there was a challenge to a law passed by voter referendum in Arizona that declared that state government business could only be done in English. A bi-lingual state employee who conversed with customers in both English and Spanish challenged the law. Her suit was successful at the trial court level. Then Governor Rose Mofford decided to not appeal the ruling but the private groups who had put the English-only law on the ballot filed an appeal. The Supreme Court found that private individuals did not have a sufficient legal interest in the case in order to properly pursue an appeal. It was up to the officials of the state to pursue an appeal and in that case, the Governor had decided it was not in the state's interest to do so. The law's advocates tried to argue that they were analogous to legislators who proposed the law - there have been instances where legislators were authorized by state law to defend a state law from a court challenge. The Supreme Court disagreed and held these private groups lacked standing.So, in this case, Perry v. Schwarzenegger, since the Governor and the Attorney General have decided to not pursue an appeal, the Prop 8 proponents, before they even get to argue the merits of whether Prop 8 is unconstitutional, must convince the appeals court why they get to be heard on appeal at all since they are private parties and not official representatives of the State of California. If the Prop 8 proponents lack the appropriate standing to appeal, the appeal could be dismissed and Judge Walker's ruling that Prop 8 is unconstitutional would stand. Of course then the Prop 8 proponents would likely appeal to the Supreme Court over this standing issue.It is thus conceivable that the Prop 8 case could be decided on this standing question with no national precedent on the constitutional merits. If a court decides that a party lacks standing to pursue an appeal, it will not decide the underlying question since courts generally will avoid deciding questions of law that are not necessary to resolve the case before them.As for the many couples who are waiting to marry in California, unfortunately, they will have to wait at least several more months, and possibly longer until this case is finally resolved.

Judge Vaughn Walker's decision in Perry v. Schwarzeneggerwill, as everyone expected, be appealed - first to the U.S. Court of Appeals for the 9th Circuit and then likely to the U.S. Supreme Court. I have read through Judge Walker's 136 page opinion and the first thing that struck me was that this opinion was particularly crafted knowing that an appeal was certain. When decisions by trial judges are appealed, the appeals court has the power to substitute its own judgment on conclusions of law. However, appeals court judges almost always defer to trial judges on findings of fact because it is the trial judges who are actually present to see and hear the evidence and to make determinations of credibility and weight of evidence. Put simply, while appeals courts can reach different legal conclusions from facts, they will generally defer to the trial judge on questions of what are the facts and which witnesses and evidence are most credible. If you read Judge Walker's opinion, you will see that he went into tremendous detail in assessing the credibility and weight to be given to the testimony of every witness. For example, there is a lengthy discussion about how most of the witnesses the proponents of Prop 8 had originally listed did not even testify and that the plaintiffs challenging Prop 8 actually put into evidence depositions given by witnesses of the proponents of Prop 8 because that testimony supported the plaintiff's position that Prop 8 is unconstitutional. There is significant discussion about the testimony of the several couples on why they wished to marry. There is extensive discussion and comparison of the testimony of the plaintiffs' experts such as historian Nancy Cott and the defendants' expert, David Blankenhorn - what were their credentials and why their testimony did or did not support the positions of the respective parties. Cott, for example, testified that historically, civil law rather than religious custom, has always been supreme in regulating and defining marriage in the United States even though under the 1st Amendment guarantee of free exercise of religion, religious clerics are permitted under state laws to officiate marriages and that, historically the ability to consent to marriage is a basic civil right. Blankenhorn, the expert for the Prop 8 proponents, conceded that the right to marry would indeed benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be "a victory for the worthy ideas of tolerance and inclusion." Yet, despite these benefits, Blankenhorn opposes recognition of same-sex marriage because such benefits would not be valuable enough because, in his view, same-sex marriage could weaken marriage as an institution. Judge Walker was very specific in rejecting this conclusion by Blankenhorn and in stating his view that Blankenhorn's testimony was not reliable. Judge Walker wrote an entire section devoted to going through each witness one by one to assess their credibility. With regard to Blankenhorn, the primary expert witness for the Prop 8 proponents, Judge Walker noted that none of the books Blankenhorn had written about marriage and family structure had been subjected to a peer review process; that Blankenhorn has no degree in psychology, sociology or anthropology despite, as Judge Walker noted, the importance of those fields to the subjects of marriage, parenthood and family structure. After analyzing Blankenhorn's testimony, credentials and methodology, Judge Walker rejected his opinions on marriage. Blankenhorn's second major assertion was that children raised by their married biological parents do better than children raised in other environments. However, as Judge Walker noted, Blankenhorn was comparing children raised by married biological parents to children raised by single parents, unmarried mothers, step families and unmarried cohabiting parents. Judge Walker found flaw in Blankenhorn's opinion because he did not provide any evidence regarding how children do who are raised by married adoptive parents. Judge Walker found Blankenhorn's reliance on biological relationship to be unsupported by evidence and therefore rejected his conclusions. Blankenhorn's third major conclusion was that recognition of same-sex marriage will lead to "deinstitutionalization" of marriage citing the prevalence of children being born out of wedlock, rising divorce rates and rising non-marital cohabitation. However, as Judge Walker wrote, no evidence was presented as to how recognizing same-sex marriage would somehow prevent opposite-sex couples from marrying and staying married. In sum, Judge Walker's opinion was carefully written to show that his conclusions were strongly based on his findings of fact and credibility which an appeal court will almost never challenge. Another key element of Judge Walker's opinion was the level of judicial scrutiny which he applied to Prop 8. Most laws are constitutional if they only meet a test of having some rational connection to a legitimate government purpose. However, when a fundamental right or liberty is involved, courts will apply a stronger "compelling interest" test. In many cases, the question of constitutionality will turn on whether the right in question is a "fundamental right" because that sets up which test will apply. Laws that are only subject to a rational basis test almost always are found to be constitutional. Judge Walker, however, did something interesting. He set aside the question of which test would apply and found that even applying the easiest-to-pass rational basis test, Prop 8 does not promote any legitimate government objective which justifies denying same-sex couples the right to marry. The Prop 8 proponents tried to advance the idea that banning same-sex marriage would promote a state interest in promoting marriage by opposite-sex couples so that they will have sexual intercourse and produce children within marriage. Judge Walker, however, found that even if that is a legitimate government objective, denying same-sex couples the right to marry will not do anything to promote that objective. Evidence was presented in the trial that gays and lesbians do not choose their sexual orientation and denying them the right to marry someone of the same sex is not going to cause them to marry someone of the opposite sex. In the end, Judge Walker found that Prop 8 only promotes certain private religious viewpoints but advancing private religious viewpoints was not a legitimate state interest that could justify denying some citizens the right to choose whom they wish to marry under the civil law. Judge Walker thus seems to have done his very best to write an opinion that exhaustively shows how it is based on findings of fact and credibility and that Prop 8 does not advance any legitimate government interest, to make it as difficult as possible for an appeals court to overturn his decision. However, he seems to have made use of another strategy to prepare his decision for review. Professor Adam Winkler of the UCLA School of Law wrote in an article in the Huffington Post about how the U.S. Supreme Court will likely line up on this issue. Chief Justice Roberts and Justices Scalia, Thomas and Alito will most likely side with the proponents of Prop 8 to uphold the ban on same-sex marriage. Justices Breyer, Bader-Ginsberg, Sotomayor and newly sworn-in Justice Kagan will most likely side with the plaintiffs challenging the constitutionality of Prop 8. That leaves Justice Kennedy as the swing vote. As Professor Winkler notes in his article, there have been two major decisions by the Supreme Court in the last 15 years concerning gay rights with both decisions coming out strongly in favor of gay rights. Both of those opinions were written by Justice Kennedy. In Lawrence v. Texas, Justice Kennedy wrote:

Proposition 8 is unconstitutional. That's the holding in Perry v. Schwarzenegger, the case challenging California's Proposition 8. Readers will recall that Proposition 8 was a voter-enacted amendment to the California Constitution which banned same-sex marriage after the California Supreme Court had previously ruled that it violated the state constitution to not allow same-sex couples the same marriage rights as heterosexual couples.In the conclusion of his opinion, Chief Judge Vaughn Walker of the U.S. District Court for the District of Northern California wrote:"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional." More specifically, Chief Judge Walker held that Proposition 8 violates the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution. Readers may recall that Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to have their offices defend Proposition 8 in court and it was the private organizations that originally sponsored Prop 8 who defended it.The opinion is quite lengthy and it just was published. When I have had a chance to read it fully, I will post again on the legal issues it addresses. Chief Judge Walker ordered an injunction against applying or enforcing Proposition 8 directed to all state officials named in the lawsuit. It is quite likely that the supporters of Proposition 8 will appeal this decision to the U.S. Court of Appeals for the 9th Circuit and the case could quite possibly eventually reach the U.S. Supreme Court.

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